New York State Court of Claims

New York State Court of Claims

AUSTIN v. THE STATE OF NEW YORK, #2001-031-003, , Motion No. M-64013


Claimant's motion for permission to file a late claim granted in the interests of justice despite Claimant's failure to file affidavit of service of motion papers upon the Attorney General in his original submission to the Clerk.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 18, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers, numbered 1 to 8, were read on motion by Claimant for an order permitting Claimant to file a late claim:Papers Numbered

Notice of Motion and Affidavit of Claimant sworn to May 13, 1998 1, 2

Affidavit of Claimant's counsel sworn to May 15, 1998 and Annexed Exhibits 3

Letter from Claimant's counsel dated August 28, 2001 4

Opposing Affidavit sworn to October 22, 2001, and Annexed Exhibits 5

Reply Affidavit of Claimant's Counsel sworn to October 23,2001 6

Letter from Defense counsel dated October 25, 2001,

and annexed exhibits 7

Letter from Claimant's counsel dated November 6, 2001 8

Upon the foregoing papers, and upon oral argument from counsel in this matter the motion is granted.
Claimant requests permission to file a late claim in this matter under an unusual set of circumstances. Claimant, Lynn E. Austin, and his wife, Elizabeth J. Austin, were involved in a motorcycle accident on Route 950-A in the town of South Valley on May 18, 1996. Claimant's wife was killed and the Claimant suffered serious injuries in that accident. Claimant alleges that the accident was the result of Defendant's improper maintenance of the roadway. Claimant, as the executor of his wife's estate, commenced a timely action for the wrongful death of Elizabeth J. Austin. At the same time, and based upon the identical underlying facts, he filed a motion for permission to file a late claim for his own personal injuries sustained in the accident.

This motion was originally filed on May 19,1998. On May 21, 1998, the Chief Clerk of the Court of Claims sent Claimant's counsel a letter explaining that, while the Clerk's Office had received and was retaining the motion, the motion could not be given a motion number, and therefore calendared, until an affidavit of service of the motion papers upon the attorney general was also filed. While Claimant's counsel does not dispute that this letter was sent, he does not recall having received it. Although the motion papers had been properly and timely served upon the attorney general, the affidavit of service was not filed for over three years.

During this time, counsel from both sides proceeded to simultaneously prepare both cases (the wife's wrongful death and the husband's personal injury) for trial. The captions of the two cases appeared jointly on correspondence and discovery demands from both sides. The cases were treated as one by both parties. While this mutual mistake does not affect the legal status of the "floating motion," it does, to some extent, explain the confusion and delay relating to the fact that the motion was never calendared. Full and extensive discovery has been completed in both matters and both matters are ready to be set for trial. It was only at a recent pre-trial conference that it was discovered that the motion for permission to file a late claim had never been calendared.

Claimant requests that the motion be treated as timely and considered on its merits, asserting that Defendant should be estopped from objecting to the timeliness of the motion because Defendant, as well as Claimant, treated the case as one with the wrongful death case and actively participated in the preparation of the case to the point that it is now ready for trial. Claimant also asserts that the failure to file the affidavit of service was not a jurisdictional defect and should not prevent this motion from being considered. The motion was not rejected or returned to Claimant's attorney by the Clerk. Rather, it was treated as having been filed, but the Clerk was waiting for the affidavit of service to schedule the motion. Claimant describes the motion as "open but un-calendared." He maintains that the motion was timely and should be heard on its merits.

The Defendant, through the affidavit and oral arguments of Gregory P. Miller, Esq., asserts that the original motion filed without the affidavit of service was a nullity, that the motion now before this Court is untimely, and that the State cannot waive or be estopped from asserting the jurisdictional defectiveness of the motion at this time.

I find that, in the interest of justice, the motion accepted and filed by the Clerk in May of 1998 is timely. Defendant's reliance on Rossi v State of New York, (Claim No 104004, Lebous J., July 9, 2001) on this issue is misplaced. In Rossi, the Clerk's office rejected, as required by statute, the Claimant's filing because the appropriate fee, or application for waiver, did not accompany that submission. I find that this matter is more akin to, though admittedly to some extent distinguishable from, the situation in Oakley v State of New York (Claim No. 94016, Collins, J., October 2, 2001). In that matter, Judge Collins addressed the merits of a late claim application after the Appellate Division, Second Department directed that the motion, which, some years earlier, had been improperly rejected by the Clerk's Office, be treated as if filed on the earlier date. In this matter, the Clerk's Office did not reject, nor was it required by statute to reject, the Claimant's filing. Though Defendant correctly points out that the Claimant's failure to file the affidavit of service with his motion was a violation of the Uniform Rules for the Court of Claims section 206.9(b), I find that this requirement is not statutorily mandated and does not rise to the level of a jurisdictional defect. Therefore, the motion will be treated as docketed nunc pro tunc, as if the affidavit of service had been filed with the original submission. I will address the motion on its merits.

Subdivision 6 of §10 of the Court of Claims Act ("CCA") enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion, balances these factors in making its determination. (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Of these six factors, Defendant disputes, appropriately so, only the first and the last. Defendant concedes that Claimant has no other remedy, that the State received timely notice of the incident, has had an opportunity to investigate, and would not be significantly prejudiced by permitting the claim to proceed. Defendant maintains, however, that Claimant has failed to demonstrate either a reasonable excuse for his delay or the existence of merit in his proposed claim.

I note that the delay involved in considering the first factor is the time between the date of the accident and May 19, 1998, when the motion papers were originally filed. As to his excuse for failing to file a timely claim, Claimant asserts that he is not an attorney and that, when he contacted an attorney in his home state of Pennsylvania, he was misinformed as to the time requirements for commencing an action against the State of New York. Neither ignorance of the law (Sevillia v State of New York, 91 AD2d 792), nor law office error (Almedia v State of New York, 70 AD2d 712) is an acceptable excuse. Claimant also states that he spent eighteen months after the accident either fully hospitalized or completely incapacitated, though he has submitted no supporting documentation from any of his health care providers. This factor, therefore, tends to weigh slightly in favor of Defendant. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a §10(6) application, and does

not necessarily preclude the relief sought here (Bay Terrace Coop., supra).

Of the enumerated factors, the appearance of merit is often deemed the most important, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit. To demonstrate that the claim has no merit, Defendant has provided the affidavit of Trooper Timothy Panus, as an expert in accident reconstruction, which supports Defendant's contention that it was not negligent in its maintenance of the road. However, Defendant's argument at best demonstrates a factual dispute as to what caused the accident. It is not required for purposes of this motion that the court determine, by input from experts or otherwise, what caused the accident. Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a Claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ).

Here, the Claimant alleges that Defendant acted negligently by applying an excess amount of tar to the roadway. When Claimant's motorcycle encountered the excess tar on the roadway, he lost control of his vehicle and the accident ensued. Claimant has succeeded in establishing that the proposed claim has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), the Court finds that they weigh in favor of granting Claimant's motion for permission to file a late claim. Based upon the foregoing, it is

ORDERED, that Claimant's motion for permission to file a late claim is granted. Claimant is directed to file and serve a claim identical to the proposed claim dated May 15, 1998, in support of this motion; and to do so in compliance with the requirements of CCA §§10, 11, and 11-a within sixty (60) days after this order is filed. And it is further,

ORDERED, that all discovery relating to the individual claim of Lynn E. Austin conducted to date in the first action, Claim No. 98327, is deemed valid and timely for the purposes of the new claim to be filed by Claimant, as though conducted subsequent to the granting of this motion.

December 18, 2001
Rochester, New York

Judge of the Court of Claims